COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Clements and Kelsey Argued at Salem, Virginia

STEPHEN MICHAEL McCARY OPINION BY v. Record No. 1666-02-3 J UDGE ROSEMARIE ANNUNZIATA DECEMBER 30, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY James V. Lane, Judge A. Gene Hart, Jr., for appellant. Amy L. Marshall, Assistant Attorn ey General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Stephen Michael McCary was convicted afte r a bench trial of construction fraud and larceny in violation of Code § 18.2-200.1. He challenges the verdict on the following grounds: the evidence was insufficient to es tablish fraudulent intent; he was not the criminal agent because he was an employee of a corporation; and the no tice letters sent to him by the homeowners were legally defective. For the re asons that follow, we affirm the decision of trial court. I. Background On appeal, we view the evidence, and all reas onable inferences arising from the evidence, in the light most favorable to the Commonwea lth because it prevailed below. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed, the evidence establishes that McCary was the registered agent of a Harrisonburg, Virginia-based modular home building corporation known as Sudden Housing II, LLC (the company), and its predecessor, Advanced System Builders, duri ng the years 1999-2001. A lthough not the owner of the company, McCary held himself out to be th e company’s president and was a signatory on the- 2 - company’s bank account at Rockingham Heritage Bank. McCary also re ferred to himself as general manager of the company, as well as financial director of the company. Neither McCary nor the company had a Virginia Contractor’s License. A. Botkin Home In the fall of 1999, Freddie and Linda Botkin entered a contract to build a modular home with Advance System Builders, which later becam e Sudden Housing II. McCary negotiated the contract and executed it. Mc Cary told the Botkins that the house would be completed by Thanksgiving 1999. On September 15, 1999, the Bo tkins wrote a check to Advance System Builders in the amount of $1,000 as a deposit on th e contract. The Botkins then obtained a construction loan through City Mortgage Group. Pursuant to the schedule submitted by McCary on October 22, 1999, the mortgage company remitted a check, payable to Sudden Housing II, in the amount of $13,557.10. McCary endorsed the check and depos ited it into the company’s bank

account. The home was not completed by Thanksgiving as promised. The modular home finally arrived on February 7, 2000. On that day, the Botkins’ mortgage company made another draw on the construction loan and forw arded a check, made payable to Advanced System Builders, in the amount of $37,255.50. McCary endorsed the check and deposited it into the company’s bank

account. The same day, the mortgage company remitted a check in the amount of $86,000 directly to All American Homes. The home was “set ” on the foundation the follo wing day, at which time McCary told the Botkins it would be completed by June of 2000. That very month, a check written by McCary to a contractor for work on the garage was returned for insufficient funds. On or about April 15, 2000, the Botkins received a letter from Sudden Housing II, signed by- 3 - McCary as the general manager, informing them that their home had been “seriously underpriced” and stating that it had caused a “s erious cash flow problem” for the company. In the fall of 2000, Vernon Reynolds, a crimin al investigator with the Department of Professional and Occupational Regulations, began an investigation and met with McCary to discuss the Botkins’ home. McCary stated he was the general manager of the company, admitted the Botkins’ home had not been completed, and a ssured Investigator Reynolds he would see that “things were taken care of.” Investigator Reynolds met with McCary on January 23, 2001, and McCary again told him that he would have someone on the site to finish the job within weeks. Investigator Reynolds told McCary that if he and the company obtai ned their licenses and fi nished the work, the investigation would end and no further proceedings would occur. The investigator had two or three more brief telephone conversations with Mc Cary during which McCary continued to assure him that the house would be completed. The house was never completed. On March 22, 2001, the Botkins sent, via cer tified mail, a notice pursuant to Code § 18.2-200.1 to McCary at Sudden Housing II. The notice demanded the return of all advanced funds. The letter came back unclaimed, however, and the Botkins neither received a response to their letter nor a refund of any money. The Botkins later learned that Sudden Housing II had filed for bankruptcy in the spring of 2001. B. Sharp Home On June 23, 2000, William and Linda Sharp gave a check in the amount of $1,000, payable to Sudden Housing II, to McCary as a deposit for a modular home plan. The Sharps then entered into a contract on August 11, 2000 to purchase the home. McCary signed the contract as president of Sudden Housing II. Th e following day the Sharps gave McCary a check,- 4 - payable to Sudden Housing II, in the amount of $45,438 to pay for the foundation, garage and deck as provided for in the contract. The foundation was never poured, and the garage and deck were never constructed; in fact, the Sharps never received the plans for the garage and deck. In late November 2000, the manufacturer delivered the Sharps’ modular home, but it could not be “set” because the foundation had not been laid. Pursuant to McCary’s request, however, the Sharps wrote a check for $110,000 upon the house’s arrival. The Sharps inquired as to when the founda tion would be ready, a nd McCary repeatedly claimed that they were “working on it.” Th e foundation was never poure d, the deck and garage were never built, and the home was never completed. The Sharps hired attorney William Beeton to represent them. On February 8, 2001, Beeton sent a letter, via certified mail, to McCary at Sudden Housing II, demanding he return the advanced funds. Neither Beeton nor the Sharps received a response from McCary despite the notice and numerous phone calls. The Commonwealth charged McCary withtwo counts of violating Code § 18.2-200.1. He was found guilty after a bench trial. McCary appeals the convictions and presents four arguments before this Court: 1) the Commonw ealth’s evidence was insufficient to prove he obtained the advances with fraudulent intent; 2) McCary’s status as an employee of Sudden Housing II shielded him from any criminal liabil ity; 3) the Botkins sent him a defective notice letter because it contained an incorrect zip code ; and 4) the notice letters from the Botkins and Sharps failed to conform to statutory requirements because they requested the return of all funds advanced. Under familiar principles, when the sufficiency of the evidence is challenged on appeal, we “review the evidence in the light most favor able to the Commonwealth, granting to it all- 5 - reasonable inferences fairly deducible ther efrom.” Ortega v. Commonwealth, 31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000). Also, “[t]he judgment of a trial court sitt ing without a jury is entitled to the same weight as a jury verdict, and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Beck v. Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643 (1986). For the reasons that follow, we affirm. II. Fraudulent Intent On appeal, McCary first contends that the Commonwealth failed to prove that he obtained advances from the Botkins and Sharps with the requisite fraudulent intent. We disagree. Code § 18.2-200.1 provides as follows: If any person obtain from another an advance of money, merchandise or other thing, of va lue, with fraudulent intent, upon a promise to perform construction, removal, repair or improvement of any building or structure perm anently annexed to real property, or any other improvements to such real property, including horticulture, nursery or forest products, and fail or refuse to perform such promise, and also fail to substantially make good such advance, he shall be deemed guilty of the larceny of such money, merchandise or other thi ng if he fails to return such advance within fifteen days of a request to do so sent by certified mail, return receipt requested, to his last known address or to the address listed in the contract. Thus, under the statute, the Commonwealth had to prove that McCary : (1) obtained an advance of money from another person, (2) with fraudulent intent at th e time the advance was obtained, (3) made a promise to perform constr uction or improvement involving real property, (4) failed to perform the promise, and (5) failed to return the advance “w ithin fifteen days of a request to do so by certified mail” to McCary’s last known address or his address listed in the contract. Klink v. Commonwealth, 12 Va. App. 815, 818, 407 S.E.2d 5, 7 (1991). Fraudulent intent is examined at the time McCary procured the advance, not when the parties entered into- 6 - the contract. Rader v. Commonwealth, 15 Va. App. 325, 329, 423 S.E.2d 207, 210 (1992) (construing Code § 18.2-200.1). Whether McCary had a fraudulent intent at the time he obtained the advances depends upon the circumstances of the case. Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986). “Intent may, and most ofte n must, be proven by circumstantial evidence and the reasonable inferences to be drawn from f acts that are within the province of the trier of fact.” Ellis v. Commonwealth, 29 Va. App. 548, 555, 513 S.E.2d 453, 456 (1999). Circumstantial evidence may be more compelling and persuasive than dire ct evidence, and it is entitled to as much weight as direct ev idence when convincing. Jett v. Commonwealth, 29 Va. App. 190, 194, 510 S.E.2d 747, 748-49 (1999). The Commonwealth must exclude reasonable hypotheses of innocence that flow fr om circumstantial evidence. Welshman v. Commonwealth, 28 Va. App. 20, 36, 502 S.E.2d 122, 130 (1998) (en banc). It need not, however, “‘disprove every remote possibility of innocence, but is, instead, required only to establish guilt of the accused to the exclus ion of a reasonable doubt.’” Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E .2d 328, 338 (1988) (quoting Bridgeman v. Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600 (1986)). We have held that certain circumstances, app licable to the case at bar, are probative of fraudulent intent. See, e.g., Norman , 2 Va. App. at 521, 346 S.E.2d at 46 (finding that intent can be inferred from failure to do anything in furtherance of promise after rece ipt of advance); Rader, 15 Va. App. at 330, 423 S.E.2d at 210 (noting that fa ilure to apply for a permit gives rise to an inference of fraudulent intent); Id. at 330-31, 423 S.E.2d at 211 (h olding that a “general lack of communication with the homeowners” is probativ e of fraudulent intent); Norman, 2 Va. App. at 521, 346 S.E.2d at 46 (noting that a contractor’s failure to contact the consumer, when the contractor realized he was fina ncially unable to perform constr uction, was probative); Rader, 15- 7 - Va. App. at 330, 423 S.E.2d at 211 (commenting thata request for an advance accompanied by a promise to complete followed by a failure to complete was probative); Hubbard v. Commonwealth, 201 Va. 61, 67, 109 S.E.2d 100, 105 (1959) (finding that other similar transactions by defendant using false representations was probative of fraudulent intent). Here, McCary’s representations and conduct, when taken together, provided a sufficient basis from which the trial court could conclude th at McCary acted with fraudulent intent. First, McCary’s numerous unfulfilled promises to complete the Botkins’ and Sharps’ homes are probative of his fraudulent intent. See Norman , 2 Va. App. at 521, 346 S.E.2d at 46. He initially promised the Botkins that their modular hom e would be completed by Thanksgiving 1999, but it did not arrive until February 7, 2000. He then promised that the home would be completed by June 2000. McCary admitted in April 2000 that his company had underpriced the Botkins’ home and, consequently, that it was e xperiencing severe cash flow problems. He nonetheless promised Investigator Reynolds in January 2001 that the Bo tkins’ home would be completed within a few weeks. He made the same promise to Investigator Reynolds two or three more times by telephone. The house, however, was never comple ted. McCary made similar promises to the Sharps, telling them that he was “working on” their home’s foundation. Contrary to McCary’s assurances, the foundation was never laid and th e Sharps’ home was never completed. The trial court could reasonably infer from this evidence that McCary never intended to fulfill his promises. Second, McCary’s failure to ob tain a license is probative of his fraudulent intent. See Rader, 15 Va. App. at 330, 423 S.E.2d at 210. Invest igator Reynolds told McCary that he would suspend his investigation if he completed the work on the Botk ins’ home and obtained a license. McCary informed Reynolds that he would ob tain a license. The Commonwealth introduced evidence, however, that neither McCary nor Sudde n Housing II ever possessed or obtained a- 8 - valid contractor’s license. This evidence gives rise to an infe rence that McCary never intended to complete his projects. Id. Third, McCary’s general lack of communi cation with the homeowners is probative of fraudulent intent. See id. at 330-31, 423 S.E.2d at 211. McCarywas evasive with the Sharps throughout the project. Linda Shar p testified that “[they] would cal l and [they] were not getting any satisfaction as to when [the y] could expect anybody up there to work.” McCary also never responded to the Sharps’ demand letter, and he did not respond to the demand letter from the Botkins. The trial court could infer from Mc Cary’s evasive conduct and failure to communicate that he never intended to co mplete the contracts. Cf. Boothe v. Commonwealth , 4 Va. App. 484, 486, 491, 358 S.E.2d 740, 742, 745 (1987) (finding no fr audulent intent where defendants remained in contact with clients). Fourth, McCary’s failure to inform the Sharps of his financial diffi culties is probative of fraudulent intent. See Norman , 2 Va. App. at 521, 346 S.E.2d at 46. Although McCary sent a letter to the Botkins on April 15, 2000, admitting that his company had a “serious cash flow problem,” he proceeded to accept two advances from the Sharps in August 2000 and November 2000 without informing them of his company’s financial difficulties. The trial court could infer from this evidence that McCary fraudulently accepted the advances from the Sharps. Finally, the trial court could infer from McCary’s conduct with the Botkins and the Sharps that he engaged in a pattern of fraudulently taking advances. See Hubbard , 201 Va. at 67, 109 S.E.2d at 105. The evidence established th at: McCary promised both homeowners he would construct modular homes; he accepted several advances from the homeowners even though little or no work had been completed on the homes; he failed to see the projects through to completion; and he did not return any of the money advanced. Although McCary completed some work on the homes, “[i]t is apparent from reason and common sense that construction fraud- 9 - can occur despite the fact that a builder or contra ctor begins to perform on the contract.” Rader, 15 Va. App. at 322, 423 S.E.2d at 212. Based on the foregoing evidence, we find that the Commonwealth excluded all reasonable hypotheses of innocence and proved beyond a reasonable doubt that McCary acted with fraudulent intent. III. Criminal Agency McCary further argues that the evidence s howed that Sudden Housing II received the advanced payments and that he cannot be crim inally liable for the company’s actions. This argument is without merit. We have held that “where a corporation’s bu siness ‘involves a viol ation of the law, the correct rule is that all who participate in it are liable.’” Compton v. Commonwealth, 22 Va. App. 751, 755, 473 S.E.2d 95, 96-97 (1996) (citations omitte d). Because a corporation acts only through its agents, we cannot allow the corporation to act as a sh ield if the law is to deter criminal conduct. Id. Furthermore, “‘[i]f th e individual personally engaged in the criminal conduct or directed or permitted its commission, it is no defense that the offense was performed on behalf of the enterprise.’” Id. (citations omitted). The evidence, when viewed in the light most favorable to the Commonwealth, establishes that McCary personally engaged in criminal conduc t. He held himself out as agent and general manager of Sudden Housing II. In his April 2001 letter to the Botk ins, McCary signed as “general manager.” Similarly, he signed the Sharps ’ contract as “President .” He was a signatory on the account and had access to the funds paid by the Botkins and Sharps ; after receiving the homeowners’ funds, he made many of the depos its. The evidence further establishes that McCary directed the homeowners as to when a nd how much money was to be advanced, that he accepted the advances from the homeowners, that he made numerous promises to the- 10 - homeowners that went unfulfille d, and that he was the homeowner’s main contact at Advance System Builders/Sudden Housing II. Accordingl y, we find the trial court properly concluded that McCary obtained the advances from the Botkins and Sharps as required under Code § 18.2-200.1, thus making him criminally liable for fraud. IV. Adequacy of Notice A. Address Complied with Statute McCary next contends that the notice th e Botkins sent to him, pursuant to Code § 18.2-200.1, was defective because it contained anincorrect zip code. We find that this argument is without merit. The relevant portion of the statute provides th at the contractor must return the advance “within fifteen days of a request to do so sent by certified mail, return receipt requested, to his last known address or to the address listed inthe contract.” Code § 18.2-200.1. The statute “requires nothing more than proof that the no tice was ‘sent by certified mail, return receipt requested to [the] last known address or the a ddress listed in the contract.’” Holsapple v. Commonwealth, 39 Va. App. 522, 534, 574 S.E.2d 756, 761 (2003). Arguing his motion to strike at the conc lusion of the Commonwealth’s case, McCary contended that the incorrect zip c ode invalidated the notice. The trial court considered the issue and found: With regard to the Botkin matte r and the fact that there is an apparent error initially in the zi p code[,] the green card regarding the receipt clearly shows a 22801 a ddress, zip code. And I feel when it’s considered as a totality, the requirement, which is to send it the last known address . . . . I think that complies with the requirements of the code section.- 11 - McCary made the same argument in closing. The trial court again rejected it and concluded the Botkins gave proper notice. The trial court’s factual findings are supported by the record and are en titled to deference upon review. The Botkins used the correct street address, city, and state. Although the envelope listed the incorrect zip code, the certified mail ca rd correctly listed the zip code. Absent a showing that a similar address at the incorrect zi p code existed, the trial court properly concluded the notice was delivered to McCary at Sudden Housing II. 1 See Basile v. American Filter Service, Inc., 231 Va. 34, 38, 340 S.E.2d 800, 802 (1986) (failure to include corporate defendant’s zip code does not invalidate servi ce because evidence established omission of zip code could not result in delivery to any location other than the corporation’s correct address). Moreover, other courts have held that an incorr ect zip code will not i nvalidate legally required notice. See, e.g., Kahl v. SAIF Corp. , 738 P.2d 999, 1000 (Or. App. 1987) (service not defeated by address with incorrect zip code); Zeigler Coal Co. v. Commonwealth Dep’t of Revenue, 691 S.W.2d 216, 217-18 (Ky. App. 1985) (incorrect zip c ode used in notice of tax lien did not preclude address from being proper). Therefore, we find that the trial court prope rly concluded that the Botkins’ notice was correctly addressed and sent to Mc Cary as required by the statute. B. Demand Complied with Statute Lastly, McCary argues that the notices sent by both homeowners did not comply with the statute because they requested the return of all monies paid. This broad demand, McCary maintains, was defective because the homeown ers actually received their modular homes. 2 He

1 The notice letter eventual ly came back to the Botkins as “unclaimed.”

2 Neither home was completed, however.- 12 - reasons that they were not, ther efore, entitled to a full refund of the money they had advanced. McCary’s argument is without merit because the st atute does not require th at the notice provide a specific accounting of funds due. The relevant portion of Code § 18.2-200.1 reads: “he shall be deemed guilty of the larceny of such money, merchandise or other thi ng if he fails to return such advance within fifteen days of a request to do so.” On its face, the statute imposes no substantive requirements on the “request to do so.” “Where a statute is unambiguous, the plain meaning is to be accepted without resort to the rules of statutory interp retation.” Last v. Virginia State Bd. of Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992). “‘Courts are not permitted to rewrite statutes. This is a legislative function. The manifest intention of the le gislature, clearl y disclosed by its language, must be applied.’” Barr v. Town & Country Properties. Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)). The plain language of the statute reve als that the legislatur e intended only that the builder or contractor be put on notice of the cl aim, affording him an opportunity to return the money or otherwise respond to the claim. Here, the Botkins and the Sharps did all that was required under the statute. They sent McCary demand letters and requested the return of the money they had advanced. The letters were sufficient to place McCaryon notice of the homeowners’ demands. The letters afforded McCary opportunities to res pond. McCary failed to avai l himself of the opportunities. For the reasons stated, we affirm the trial court. Affirmed.